Saturday, May 21, 2005

Black Sea Black Out

Friday, May 20, 2005

Germany: DVD = Video Cassette for Copyright Eploitation

A DVD equals a video cassette when it comes to the commercial exploitation of copyrights. That has the highest court in Germany, the Bundesgerichthof, decided yesterday. It noted that the DVD does no economically independent use form, but merely a technological innovation. A "filmarchitect" (set designer) had sued an exploitation corporation that had distributed the movie "Der Zauberberg" on video cassette, and later on DVD. The filmarchitect claimed that at the time he signed a contract with the production company, the applicable copyright clause (§ 31 Abs. 4 German Copyright Law) did only cover an exploitation on video cassette, not on DVD.

The Bundesgerichthof affirmed a lower court ruling and noted that a mere technological novelty would not bring a new use (of commercial exploitation). The use must be an independent economic form of use, and since the DVD is to be seen as a replacement of the video cassette, this was not granted. The Bundesgerichthof has referred the case to first instance to conclude on some other copyright exploitation issues concerning a documentary on the movie included on the DVD.

The legal issues in this case are (slightly) reminiscent of the unauthorized inclusion of articles of free lancers writers in databases by news papers. For more on that see this post on a recent settlement in a US class-action lawsuit.

Thursday, May 19, 2005

Japanese Copyright Law & Symbol System

The Copyright Division of the Japanese Agency for Cultural Affairs (ACA) provides an nice overview of the 2003 and 2004 Law for the Amendment of Japan's Copyright Law [PDF - thruChosaq]. The overview also mentions the copyright policy for building a "Nation Based on Intellectual Property". To this end the ACA strives to popularize something which is reminiscent of a (limited) Creative Commons system: the Free Use Marks system, "which enables copyright holders to predetermine the scope in which their copyrighted works can be used without advance approval."

These are the symbols copyrightholders can attach to their works:

From left to right:1. Copy OK: Permission for printing, duplication, and free distribution2. Use by Disabled OK: Permission for non-profit use for the benefit of the disabled3. School education OK: Permission for non-profit use for school education

I've got no idea how widely this system is used, but one would think that at least the third option (School education OK) might be covered by the permissible scope of “exceptional unapproved use”. Anybody to fill me in?

Leaves the question how far the scope of "exeptional unapproved use" goes in Japan, or if he Free Use Label provides the suggestion of (school) exclusion, where it alrady is a given. Have to dive in and catch up on Japanese Copyright Law, Im running behind. In the meantime, Creative Commons is working on International Commons and there's a Japanese license, of course.

Interview R2G on Online Music Distribution & Piracy

R2G is the the first centralized music distribution platform in China. As I wrote earlier "It plays a third-party function between service providers and content providers, organizing music licensing and monitoring its distribution." It also has "an agreement with China's Copyright Protection Centre" to provide "data records services as legal evidence in copyright-related lawsuits".

The Pacific Epoch has an interview wit R2G co-founder Scarlett Li on their deal with Universal Music and runnig a music distribution and monitoring business in China:

PE: What kind of authority does R2G have with regard to controlling piracy? Does it mostly involve monitoring activity, and then letting Universal take whatever action they choose?

SL: Universal has given us the authority to take legal action, but we will normally only do this after discussing with Universal first, after which we have various things we can do. The important thing for us is to help SPs understand the benefit of legal content and also to obtain the legal content easier because sometimes the channel is not clear. So we are not only monitoring piracy but also licensing content. Any piracy behavior will not only affect Universal, but it will also affect our revenue stream and our rights, because we are distributing the content.

[...]

PE: What do you think is the best way to deal with the piracy issue in China? Is it mostly up to the government, or will it be companies like R2G that take lead in fighting piracy?

SL: I think the most effective way to address piracy is actually for legal content providers to provide a service that is better than pirated services. There must be a legal service at a reasonable price and that is better quality and faster than the pirated services. Government effort is important, but even more important is to provide a product that is competitive with the illegal services. It is similar to what iTunes did in the US. The US has a huge piracy issue as a result of P2P networks, but when Apple launched their iTunes service, it was better than the illegal services, which gave them a large part of the market. So I really think the most important factor is the product itself. If you provide a better service, even if it's a little bit more expensive, people will use it.

Sweden: Threat Prohibition Copy Protection Meager Trade Off for Users

The heat in the digital copyright debate in Sweden is growing and Justice Minister Thomas Bodström seems to add some fuel to the fire. While proposed legislation would make the downloading of copyrighted content illegal, Bodström now threatens to make copy-protection mechanisms on CDs illegal. Bodström is looking for a balance between copyrightholders and users, saying on Swedish television:

"When the copyright is strengthened, it is extra important that this doesn't reduce the options to copy legal material for private use, through the copyright owners "locking" material with copy blocking." "The industry must ensure that the option to copy for private use is not hindered by technical means."

Bodström remarks seem to echo article 6(4) of the European Copyright Directive, which requires Member States to ensure that rightholders provide consumers the possibility to benefit from some copyright exemptions when copy protection measures are used. That is, if rightholders don't do that voluntarily in the first place. Interestingly enough private use is one of the exemptions that does not have to be safeguarded, but Member States may intervene none the less if rightholders fail to accommodate it. Apparently Bodström is threatening to choose for this option.

The record industry seems to feel the "heath". Magnus Mårtensson, a lawyer at the International Federation of the Phonographic Industry (IFPI), says:

"We totally agree with Bodström." "The whole point is that you should technically be able to do the copying you're allowed to do. Two years ago this was more of an issue, but now there is only one record label in Sweden which still copy protects its CDs."

Question is if this kind of trade-off between prohibiting downloading and prohibiting copy protection will benefit users in the end. The prohibition of copy protection on CDs would mean the recognition of established users interests (private use): "the copying you're allowed to do". Prohibition of downloading would limit users interests they can currently enjoy. That seems like a meager deal wrapped in much fireworks. Cold fire that does not hurt the record industry, but may burn users.

The European Levy Business

The International Herald Tribune runs an article that gives a nice, short insight into the current European levy business, which one could fairly call it considering the enormous added summs collecting societies are generating from consumers. This business is only to expand, for example by the Dutch collecting society Stichting Thuiskopie:

Hester Wijminga, the lead negotiator for Stichting Thuiskopie, said her group in April proposed a levy of 3.28 per gigabyte on MP3 players, which would add a fee of nearly $250 on a 60-gigabyte iPod. Wijminga said industry representatives rejected the proposal, and negotiators are set to meet again June 15.

Wednesday, May 18, 2005

Paper: Copyright Class War

I'm not that keen on the black & white labeling that often goes with the "copyright war" talk. Though (rhetoric) polarisation can make the interests at stake more clear in some kind of crude manner, this crudeness may also hinder (legal) solutions in the end. Anyway, Niels Schaumann has published a paper called Copyright Class War (SSRN). The second sentence of his introduction reads: "To call it a war is overstating the case a little, but only a little." I'm working through the pages to read why this is only a little overstatement, but I can guess somewhat which grounds he'll treat upon. The works of Jessica Litman and Siva Vaidhyanathan are analysed in depth at the end of the paper. Still have to see if it provides some new ammo for the "copyright warfare", but you can guess from which Schaumann is firing.

Here's the abstract:

Developments in digital technology are dramatically reordering the content distribution business. The industry's traditional business model, based on controlling the channels of distribution for tangible copies, is threatened by digital distribution, with its low barriers to entry, low marginal costs and worldwide reach. An industry preoccupied with marketing, distributing and selling containers for content-books, CD's, DVD's, and so on - is discovering that the ability to control distribution channels for such containers is increasingly irrelevant in a world where the content formerly anchored to physical containers now flows freely through fiber-optic cable.

The threat to the content industry has resulted in a kind of class war. The combatants' positions, and the changes in position that occur over time, can be understood in terms of a struggle between those that claim to possess a valuable resource and those that cannot, or cannot yet, make such a claim. Today, the Copyright Act, which was drafted by special-interest groups and is essentially incomprehensible to the uninitiated, is being used against the public. It has become critical for the public to engage with copyright law, and re-assert the primacy of the public interest. The author maintains that a nation gets the copyright law it deserves. A public that is passive in the face of expanding property rights in information will pay a heavy price in the form of homogenized culture and loss of intellectual liberty.

In March Dominique Barella, the President of the European Public Service Union for magistrates, published an opinion article in news paper Liberation titled Decriminalize Downloaded Music. He noted that in the current situation "[The sanctions are] not to protect creation, but to protect some CD multinationals". Barella condemned the current prosecution of file-sharers in France in strong words, speaking of a rapture that is being torn between generations, and expressed his preference for technical and economic solutions rather than a penal.

According to Liberation [French] Barella's article made some organisations of copyrightholders more than a little upset. In fact the trade union for the phonographic industry (Snep), the organisation of film producers (ARP) and collective rights organisation SACEM were "extremely surprised and shocked". Apparently they expressed this in an email to the French Minister of Justice, who they thanked in advance for the initiatives he will have take as a consequence. The Minister hasn't taken any initiatives against Barella over his article, which is "very virulent and offensive to many people" according to the email. The signatories protest that Barella can publish such an article in the press that justifies and encourages file-sharing. Barella is not impressed and keeps to his opinion on the current prosecution of file-sharers, which he thinks harms the credibility of the penal system.

Macrovision P2P Patent Analysed

The Challenge of P2P analyses Macrovision's patent application on the "interdiction of unauthorized copying in a decentralized network", I posted on yesterday. Found through Ed Felten's Dashlog, who notes that there are "No groundbreaking techniques in the patents, but they do reveal what parts of the industry are thinking."

Nude Mod DMCA Lawsuit Settled

Back in February game manufacturer Tecmo filed a lawsuit against the administrator of the website ninjahacker.net and some undisclosed individuals for "creating, hosting and contributing content to a forum created to foster and facilitate the knowing infringement of Tecmo's proprietary software for its video game titles." The alleged infringements, under the Digital millennium Copyright Act, were some "nude mods" of Tecmo's games that stripped of the bathing suits of female game characters.

Tecmo now goes for an undisclosed settlement with the administrator, avoiding the possibility to put their DMCA claim to the test for the moment. Electronic Frontier foundation's Jason Schultz argued that Tecmo would fail this test in the light of fair use. I wondered if the Judge might stop short from the fair use issue at the DMCA's anti-circumvention provision and be favourable to Tecmo. I wrote I'd stand corrected till the outcome. We might get one if Tecmo decides to go after the "undisclosed individuals", if the administrator turned over ninjahacker's user list.

Star Wars: Turkish Rip, Mix, Burn

Who wants to see the latest Star Wars movie, when you can get the not-so-real thing: Turkish Star Wars (Dunyayi Kurtaran Adam aka "The Man Who Saves the World" - IMDB). Thanks to relaxed Turkish copyright laws this 1982 cult movie is full of images from the original Star Wars and a loosely borrowed story line, played out on remix of the sound tracks of Star Wars, Raiders of the Lost Arc, Moonraker, Flash Gordon and Planet of the Apes. A rip-off fest of true magnificence, which apparently "is not, however, a meaningless rip-off. The movie was made soon after the 1980 coup in Turkey and does have political messages about the gangs, corruption and chaos that followed."

Enjoy some blatantly horrible special effects, sci-fi kung-fu extravaganza and dialogue George Lucas could not dream up:

A system and methods for communicating over the Internet with devices of a decentralized network using transparent asymmetric return paths are described. Remote capture centers are geographically distributed so as to communicate with devices of a decentralized network that reside in diverse geographical locations. A centralized data center communicates with the remote capture centers so as to generate processed information in the form of reply packets from information received at the remote capture centers from the devices, and transmit the processed information back to the devices in a manner so that the processed information appears to have been transmitted from the remote capture centers.

Then you apply for a patent on a monitoring and anti-copying system in that decentralized network (US Patent 803784):

An interdiction system includes software agents masquerading as nodes in a decentralized network, a query matcher that receives search results captured by the software agents and reports matches with protected files back to the software agents, and a central coordinating authority that coordinates activities of the software agents by sending instructions to the software agents specifying actions to be taken. Possible activities and related interdicting methods include manipulating search results before forwarding them on in the network, quarantining selected nodes in the network, performing file impersonations such as transferring synthesized decoys, performing file transfer attenuation, and hash spoofing.

German Court: Providers Not Obliged To Provide Customer Data

The Higher Regional Court of Hamburg has ruled that access providers are not legally obliged to provide customer data to rightsholders when there is a suspicion of illegal copying and dissemination of copyright protected works. Unlike the District Court before, the Higher Regional Court provided a narrow interpretation of the right to information in infringement cases provided by paragraph 101a of the German Copyright Act. It noted that this only applied to those involved in the actual infringing acts, and not the access providers themselves.

The question is if this ruling, and a similar one by a Frankfurt Court, will hold under future legislation. The draft for a new Telemedia Act contains a provision that gives ISPs the right to hand over customer data to copyrightholders, among others. Commentators have noticed that this right may become an obligation, thus weakening data protection for the benefit of (copyright) enforcement.

EC: Illegal P2P Strains Internet's Backbone, ISPs to Doctor

The push of the European Commission to create an online environment for (European) movie distribution is crystallizing. Earlier reports on a preliminary discussion of this subject in April were a bit shady. Yesterday, at an informal meeting of Ministers of the Audiovisual, the highlights of this discussion were incorporated in a speech by Viviane Reding, European Commissioner responsible for Information Society and Media.

It seems the early reporting was correct that there is a drive from within the European Commission and stakeholders to increase the focus on ISPs as active enforcers of copyrights. Says Reding: "[I]llegal uploading and downloading takes up enormous amounts of bandwidth, which puts a lot strain on the backbone of the internet." (Note the suggestion that downloading is illegal, something which is, again suggestively, contravened in the same speech.) There is a clear call for ISPs to doctor this "strain" and co-operate with rightsholders to create a healthy environment for legal online movie distribution. Reding puts forward a "graduated response" to "unauthorised file-sharing or downloading of films which is being advocated in a number of Member States now". From the speech:

A graduated response to illegal file sharing entails, for instance, the following steps:

(1) ISPs send an e-mail to their clients telling them to stop their illegal activities; (2) ISPs send a registered letter to their clients telling them to stop their illegal activities; (3) ISPs cut the bandwidth of their clients; (4) ISPs suspend or terminate the contract. This is of course to be done under judicial review.

Of course, this is to be done under judicial review. Worrisome is that past regulation has provided a regime largely based on private codes of conduct, which lack (public) procedural safeguards that clearly line out how ISPs take down allegedly infringing or illegal content before a possible judicial review. When it comes to ISPs as hosting providers the liability regime set forth by article 14 of the European E-Commerce Directive creates a legal environment in which the incentive to take down content is higher than the potential costs flowing from liability.

However, in her speech Reding is focusing on ISPs as "mere conduits", providing internet access and the transmission of content. She sees "clear opportunities for close co-operation between rights holders and the access providers, taking into account in particular Articles 12 and 15 of the eCommerce Directive". Those articles exclude ISPs from liability for "mere conduit" (article 12) and a general obligation "to monitor the information they transmit or store". The close co-operation Reding envisions is a hint at the expansion of ("mere conduit") ISPs as enforcers of copyrights and a possible expansion of their liability under this co-operation.

What stings is that after some heavy regulative steps are summed up, the judicial review of these actions is presented as no-brainer. Of course the centralized control of internet access will be guarded. Have no doubts, don't worry, sleep tight. Well, excuse me for staying awake for just a while longer.

Friday, May 13, 2005

Copyright Spin: Digital Media Anti-Consumers' Rights Act

The copyright spin is on again. Last week the MPAA said that the broadcast flag decision would hurt consumers. This week a coalition of major copyrightholders is claiming that the US Digital Media Consumers' Rights Act (DMCRA) "is decidedly anti-consumer." In letters sent to lawmakers this week the Copyright Assembly apparently claims that:

"If enacted, it would promote 'hacking' and the proliferation of 'hacker tools,' undermine the incentives for both copyright owners and the people who create those copyrighted works to create and distribute the highest-quality products to American consumers," [...] "In the end, HR 1201 will leave individuals with fewer choices, less flexibility and inferior quality digital entertainment." [...] "We urge you to seriously consider the adverse effects of this proposal and opt to protect consumer choice in the marketplace by rejecting HR 1201."

What the DMCRA would actually allow is "to circumvent a technological measure in order to obtain access to the work for purposes of making noninfringing use of the work" (Section 5(b)(1) DMCRA). Such a noninfringing use would be a fair use, which I would not consider "decidedly anti-consumer". One can argue about the scope of this fair use, but provided there is such a thing, legislation to enforce it can't hardly be called hacking. I'd consider hacking the illegal or unauthorized gaining of access to (protected) content. Living to the letter of the DMCRA, if enforced, one cannot even speak of hacking, since it would be legal. Or is the fear that those who already circumvent DRMs will be stimulated to do some extra real "hacking" just because "fair use hacking" would be "legalized".

Maybe that's just a little wordplay, but it's right up the letter's alley. Copyrightholders have genuine interests in the protection of their works, and may put forward some arguments against the DMCRA. But their "legalize hacking" mantra is just the familiar spin. As is the claim that the DMCRA would result in "inferior digital entertainment", which was also put forward as an argument to implement the broadcast flag.

Interestingly the letter makes a distinction between "copyright owners" and "people who create those copyrighted works". Presumably not intended to highlight, this distinction may be considered one of the problems under today's state of copyright: those who actually create may not be the ones who actually hold the rights to their works and exploit them. Not the individual creator, but the corporate "copyright intermediair" calls the shots on exploitation and enforcement. And, not in the last place, on the lobbying in the US and European political arena to codify that copyright, which serves their (existing) business models. In that light the DMCRA is neither anti-consumer, nor anti-creative, nor anti-copyright, for that matter. Maybe just pro-consumer, if you look beyond the spin.

German Court Confirms Printer Levy

Wednesday a German Court of Appeals in Stuttgart upheld a lower court decision that printers could be defined as copy-making devices and therefore the levy regime would apply on them. As I wrote in January this outcome would be likely under (upcoming) German copyright law.

In the framework of this lawsuit between Hewlett-Packard and collecting society Wort the arbitration commission of the German Patent and Trademark Office had suggested in 2004 to collect levies up to 70 euro for every printer sold in Germany since 2001. Apparently the proposed amounts to be collected now vary between 10 and 300 euro. The German IT industry fears substantial negative economic effects and even some chill on innovation.

The German printer levy is (still) unique in Europe. Germany also had another first: the PC levy. Levies and their applicability on digital storage devices are increasingly discussed lately. The European Copyright Directive seeks to phase out levies for DRM, which recently was pretty much confirmed by the head of the European Commission's Copyright Unit. DRM may be the envisioned death of levies, but I still wonder if this is more than some last convulsion.

Article on the encryption of digital movies with the Advanced Encryption Standard, for example the latest Star Wars release, which

"is shipped to a theater on a hard drive, according to Technicolor Digital Cinema President Ahmad Ouri. Once it's been confirmed that the theater has received the encrypted film and loaded it onto a server, the encryption key is then delivered separately. "The film is useless without the key, and the key just tells the projector it's OK to show the film." In other words, it does not allow the movie to be copied in any way off the server."

Thursday, May 12, 2005

Earcams Listen to the Sound of Violence

Camera's are getting ears: in the Dutch city Groningen surveillance camera's are equipped with sound detection technology to detect sounds of violence. The company behind the technology, Sound Intelligence, says:

Our technology is inspired by the human auditory system and allows the detection and classification of all kinds of sound sources in arbitrary noisy acoustic environments.

A news item on Dutch television reported today that Groningen has been experimenting with the technology in the city's center without the knowledge of the Dutch privacy watchdog, or the public for that matter. It has been pointed out that this "sound surveillance" may be a violation of art. 139(b)(2) of the Dutch Penal Code, which forbids the (wire)tapping and recording of conversations in the public sphere. Groningen's mayor and those who designed the "earcams" point out that the sound surveillance merely picks up sounds of violence, point the camera towards the source of this sound and does not record anything. This is a thin line to walk, and may prove too thin under further legal scrutiny. By the way, under some journalistic scrutiny the mayor had the best argument of all why this extention of surveillance should be allowed: it may be intrusive, but it is for a good cause.

- - -

(A few technical details, in English, on the company's website. The picture above is of the sound of an aircraft, which can be a pretty violent, here in Amsterdam.)

Consumer Reports rates 11 filtering systems. Still (very) inaccurate, and while more porn is blocked "the best porn blockers were heavy-handed against sites about health issues, sex education, civil rights, and politics".

Paper: Panoptics in Privacy v. Piracy

For those familiar with the writings of legal philosopher Jeremy Bentham the title of this blog may ring more than a bell (though the relationship is somewhat coincidental). I've been working on an essay that partly integrates Bentham's/Foucault's writings on panopticism and the hybrid of public and private speech control online. (To put it in a nutshell...) I'll probably put it up on SSRN when finished, but in the meantime make sure to take a look at Sonia Katyal's Privacy vs. Piracy (SSRN). It researches similar (legal) grounds and provides lots of insights on online information control through code and its implications for privacy. Just a snip from the panoptic musings, though that is a small word for this very interesting paper of a solid 125 pages:

While the panoptic metaphor has been crucial to understanding disciplinary processes in real space, I would argue that it is especially useful when applied to the effects of surveillance on the Web. In a peer-to-peer environment, the traditional distinction between private and public space readily collapses, leaving open a minefield of possibilities for invasion and observance. The identities and activities we adopt in cyberspace can become transparently visible, compromising privacy and identity. Many of our activities in cyberspace communications, files, stored pictures, online activitiescan be monitored, revealed, and recorded at the same time. As a result, the file sharing revolution renders certain files stored on individual computers potentially accessible, from the most personal to the most public information, enabling invasion without physical invasion.

Dutch Anti-Piracy Organisation Seeks IDs File-Sharers, Sues ISPs

As expected the Dutch anti-piracy organisation BREIN has taken the five biggest ISPs to court to obtain the identity of 42 of their customers, which it accuses of offering copyrighted material for upload. These 42 are the majority of the file-sharers who received a cease & desist letter through the ISPs and did not choose to settle for an average amount of 2100 euros (only eight did). This will be the first lawsuit in The Netherlands spinning from a copyright crack down on file-sharers and will test if ISPs have to hand over identifying information to aide copyright enforcement.

The ISPs' lawyer Alberdingk Thijm, of KaZaA fame, noted earlier that "a private party like BREIN has no legislative ground to obtain name and address information from providers." He refers BREIN to the possibility of criminal proceedings against the uploaders based on the alleged copyright infringement. Obviously BREIN'S director does not agree, but he will have to wait till June 6th before he can prove Alberdingk thijm wrong.

RFID as DRM

Why not get the best of both sides if you want to control and manage content? As the RFID Journal reports the UCLA's Wireless Internet for the Mobile Enterprise Consortium (WINMEC) is researching the use of RFID as a DRM tool. It works on the integration of RFID tags in DVDs, which would be authenticated by RFID readers in DVD players. The stages of the project are very early, but already the RFID-DRM is presented as a great could-be development for consumers: they would be able to watch new releases at home the moment they come out. That is of course the spin on most DRMs: enhanced consumer choice for what is above all an anti-piracy tool and business model enforcer.

More technologically skilled may be able to point out the potential problems underlying this use of RFID, but let me lift some from the article:

in order to authenticate the content, the player would need to link to an online network that would associate the DVD with a legal sale

rightsholders would have DRM control over the content through this (online authentication) system

"a platform for associating DVDs with their purchasers or owners" would be needed

consumers can only view movies on RFID-enabled players

So, here we see how the access and copying controls of old meet the monitoring and profiling of new. Relatively new, for playing a DVD at least, which raises some serious (intellectual) privacy concerns under this scheme. The content providers' answer to these concerns will probably be one of comfort, as always: the linkage between content and its "owners"/purchasers will serve you better. Yes, and we serve the servants.

- - -

Later Ed Felten at Freedom to Tinker analyses the use of RFID on DVDs and says the idea "isn't totally crazy".

Wednesday, May 11, 2005

French Go Dutch: Levies for the Gigabyte

The French may go Dutch on levies with a German twist. Levies is a certain extra amount paid for a storage device to remunerate rightsholders for private copying. In the Netherlands a recent proposal was presented to extent these levies to digital storage devices like hard disks and MP3 players, dubbed as the "iPod tax". In Germany levies are already applied to PCs, which may be codified by the new German Copyright Act. The IT industry fears that excessive levies may make technology prohibitively expensive. Under the new Dutch levies proposal one would apparently have to pay 3.28 ($4.3) in levies per gigabyte.

Now the extension of levies seen in Germany and The Netherlands seems to find its way to France. The Commission D'Albis is revising the levy system and now proposes to extent them to 80 + GB hard disks and USB key chains. This would be somewhat more modest than in The Netherlands, but the stakes are still high. Not in the last place for the collecting societies, who in France received 190 million euros through levies last year. For comparison, the music industry grossed 953 million euros in France. Since consumer organisations and IT manufacturers are also part of the commission it will have to be seen if the proposals see the day of light.

This all comes at a time that the head of the European Commission's Copyright Unit has spoken out against collecting societies and pushed DRM for the future. Like the universe collecting societies seem to expand, one last time before they start to shrink into nothingness. Maybe they should propogate a universal licence instead, before DRM gets the best of them: one tax to rule them all.

German Telemedia Act To Weaken Data Protection?

A draft proposal for a new Telemedia Act (Telemediengesetz) by the Federal German government contains a provision that potentially increases the right of service providers to hand over customer data to (copy)rightsholders. According to provision § 12(3) ISPs may provide personal data to those who are entitled to receive them by law. This may include copyrightsholder, which seek to enforce their rights against infringement. It should be noted that the draft points out that this provision is still under discussion and that a likewise provision did not make it to the draft for a new German Copyright Act. Which poses my (uninformed) question if this is a fresh legislative attempt to encode the increased focus on enforcement of (copy)rights through ISPs, or born together with its dropped "twin"-provision of the Copyright Act draft.

Long dissenction of the China's (lack of) efforts to comply with (international) copyright law and its recent White Paper called New Progress in China's Protection of IPR. Issued by the Tibetian Youth Congress, so obviously subjective and with a critical tone, going on negative. Still, worth a skim for some interesting insights in the Chinese IP politics.

Monday, May 09, 2005

R2G: Dredging the Chinese (P2P) Flood

The China Daily runs an article on R2G, the first centralized music distribution platform in China. It will play a third-party function between service providers and content providers, organizing music licensing and monitoring its distribution. R2G's chief operating officer spreads some Chinese wisdom on how to make a business in the world's largest piracy market:

"It is just like controlling the flood. Blocking the flood with dust does not work. You have to dredge it. And that's exactly our business. Once pirated downloading is tracked, we will contact SPs offering such services and see if they are willing to join us."

R2G will track specific instances of online copyright violation of registered content using 2 proprietary tools - the Spider & Wasp crawling through major Service Providers and Search Engines in China with the result that all instances of unlicensed content will be uncovered in detail for follow-up legal action.

Uncovering is the provision of "data records services as legal evidence in copyright-related lawsuits" on the basis of "an agreement with China's Copyright Protection Centre". That sounds more like forking the flood than dredging to me: capitalize on those who cooperate; hand over those who don't to the government for copyright enforcement. Great doing business in China.

T-Mobile announces the implementation of Macrovision's copy protection scheme in the digital set-top boxes for its Video-on-Demand service, which grants users "the bonus of pause, fast forward, rewind, and temporary storage." Users should be grateful for bringing the VCR functionality they have enjoyed for decades as a bonus to the digital age.

Xenophobes Applaud Airing Van Gogh's Submission

The short movie Submission of Dutch writer and filmmaker Theo van Gogh, murdered last November by a radical Muslim, will be aired on national Italian television next Thursday. Past plans to broadcast the movie were not realized out of security concerns. The populist Italian anti-immigrant political party Northern League tried to show the movie on its own network, but was stopped by its producer.

Now the party hails the airing of Submission as "a victory for freedom of expression". That may be, but it is sad to see how a movie that aimed to open up the debate on domestic abuse of Islamic women, even if it was provocative and crude to many, is being hijacked as a propaganda vehicle for a xenophobic political agenda.

The US Government Printing Office may use harvesting techniques to catch fugitive publications, "which are documents that federal agencies have published on the Web but for which no copy or record exists in GPO's database."

The European Commission plans to expand its efforts to digitize and exploit Europe's written and audiovisual heritage and increaeses funds for "the development of search engines for the general public".

"This is a disappointing decision and could create a digital television divide by slowing or eliminating access to high quality digital programming for some consumers."

The digital divide Glickman is referring to is the discrepancy in the availability of digital television between users receiving it through satellite and cable service (labeled as secure) and over the air (labeled as insecure). To differentiate on the security of the delivery systems, and pressing that the implementation of the Broadcast Flag would fill this "security gap", is a little hopeful. It has been pointed out that the Broadcast Flag scheme is based on an insufficient threat model and would not withhold the tech-savvy user from redistributing the televised content over the internet (e.g. Felten 2003). That while the average consumer, the consumer the MPAA apparently takes to its heart, is prevented from casual copying, and what's more, fair uses.

The press release stresses in bold that "The Broadcast Flag does NOT prevent copying  only redistribution over the Internet and other digital networks." That statement goes from hopeful to a little misleading. The Broadcast Flag implements a technological protection regime in the hardware of consumer devices and the general purpose computer to prevent redistribution of flagged content over the internet. Its goal is to prevent redistribution; its tool to reach this goal is keeping the original, flagged content within a closed network of approved devices. Taking content outside of that network, making copies to unapproved devices is not allowed. Possible fair uses by consumers (time-shifting, platform-shifting, taking excerpts) that involve copying the original content would not be possible. Saying that the Broadcast Flag "does NOT prevent copying" is a superficial spin, which the FCC already applied when it changed the name of the Broadcast Flag proceedings from Digital Broadcast Copy Protection to Digital Broadcast Content Protection. Fair consumer uses are largely spun away in the process.

The biggest spin comes with the MPAA presenting itself as the consumer crusaders of the digital (television) age:

We will continue working aggressively on all fronts to make sure consumers will have access to high-value content on broadcast television.

Again, this is a pointer to the digital television divide that is upon us, if we may believe the MPAA. To stress that some consumers will be left in the analogue cold if the Broadcast flag is not implemented, is based on the theory that content producers will not provide "high-value" digital content without a solid content protection mechanism in place. Until now these threats have proven idle, and it has to be seen if content producers will or are willing to kill off broadcasters, often cutting into their own revenue streams. Not the least because they often have (financial) interests in the broadcasters themselves.

On one point the MPAA's press release is right: the Court's ruling is on the FCC's lack of authority to regulate, and the MPAA will undoubtedly "continue working aggressively" at the US congress to secure secured access for consumers to digital television (leaving the question of its quality aside). This is the couch potato consumer that fits into the MPAA'a incumbent business model and is locked-in to his home network. A representative of Hewlett-Packard hit the nail on its head when speaking over its Broadcast Flag style content protection measure:

"While developing the Video Content Protection System, we continually kept the perspective of the person sitting in their living room watching TV as a dominant part of the equation."

Keep that perspective in mind. It might be your future if the MPAA wins the fight over your consumer interests.

In 2002, Mel Karmazin, then president of Viacom, threatened to withdraw high-definition versions of programming from the airwaves if the flag technology was not adopted, a threat echoed by other broadcasters and movie studios.

“Now we will see if threats to pull broadcasts from CBS and others are real or not,” said Mark Cuban, owner of the Dallas Mavericks and HDNet, an all-HDTV channel available through cable and satellite, and an opponent of the broadcast flag.

Those measures are unlikely to be taken any time soon. First, advocates of the flag technology will try to circumvent the court’s ruling through Congressional legislation.

[…] “We’re concerned, because if proper protection is not in place, consumers could lose content,” said John Feehery, executive vice president for the Motion Picture Association of America, the trade group representing the major Hollywood studios.

Saturday, May 07, 2005

The first (Frech) P2P magazine hits the stores next week. Its editor in chief explains [French]:

The audio-visual majors have declared a true war on peer-to-peer. The Net surfers and amateurs of file-sharing have the advantage of the numbers, but miss official relays. Several associations were created, many Internet sites were born... but no title was diffused in kiosks to engage the debate and to defend their interests. P2PMag thus launches out into the adventure and becomes the 1st official mag for P2Pists. A premiere which is not without risks."

Yes, and that's why you put a P2P babe on the front page. A huge commercial risk.

Copyright Concerns Silence Major Podcasting

The first podcasting by a major US radio station has been halted over copyright concerns. Steve Dahl, broadcaster of Infinity radio, notes on his site:

Although it seems like it would be simply time-shifted streaming, podcasting is not currently considered "streaming" and is not covered under Infinity ASCAP, BMI, and SESAC licenses or under the statutory streaming license. So for now, I am suspending the daily podcasts and also the downloads of the show, since they seem to fall under the same heading as the podcasts...

I never got my podcasting software up and running. Guess I still have a lack of interest there, even though I find it somewhat intriguing that it's a brain child of Dutch glamourman Adam Curry, mostly known here for his VJ-ing, helicopter rides and soap opera marriage turned into a reality show.

Friday, May 06, 2005

FCC's Broadcast Flag Vacated by US Court

The US Court of Appeals of the District of Columbia has vacated the Federal Communications Commission's broadcast flag today! It noted that petitioners had standing in their complaint and that the FCC "exceeded the scope of its delegated authority" with the broadcast flag. It has send the case back for review. The ruling can be found here [PDF]. From the ruling:

There is no statutory foundation for the broadcast flag rules, and consequently the rules are ancillary to nothing. Therefore, we hold that the Commission acted outside the scope of its delegated authority when it adopted the disputed broadcast flag regulations. [p. 4]

and

We can find nothing in the statute, its legislative history, the applicable case law, or agency practice indicating that Congress meant to provide the sweeping authority the FCC now claims over receiver apparatus. And the agency’s strained and implausible interpretations of the definitional provisions of the Communications Act of 1934 do not lend credence to its position. As the Supreme Court has reminded us, Congress “does not . . . hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 468 (2001). In sum, we hold that, at most, the Commission only has general authority under Title I to regulate apparatus used for the receipt of radio or wire communication while those apparatus are engaged in communication. [p. 26]

This is an important ruling, especially for the future of technological innovation. Background posts:

US Orphan Works Up for European Adoption

Buzzed around theblogs for the last days is the issue of "orphan works": (presumably) copyrighted works whose rightsholders are difficult or impossible to find. This keeps them from being reused in other works or made available to the public. The US Copyright Office launched an inquiry into the issue for possible legislative changes, received 700+ comments and reply-comments are due next Monday.

Stanford's Center for Internet & Society is whipping up some extra steam before this deadline ends and mailed out requests to highlight some of the comments. Apparently because I "care about copyright and the Internet" I'm asked to reproduce comment #100 [PDF] about someone who runs twowebsites with information about and software for classic computers from the '70s and '80s, notably Atari. I refer to the link and point out another comment instead [no. 36-PDF], which is a little more European flavoured. The transatlantic discrepancy between copyright protection of sound recordings brings some interesting consequences for the (commercial) "adoption" of US orphans in Europe:

In the European Economic Community, the duration of copyright of recordings is 50 years. As a US company I can legally issue in Europe, a recording, commercial, or broadcast, that is public domain in Europe but still covered by copyrights in the US. I can press in Europe, warehouse in Europe and sell in Europe a recording covered by US copyright. Further, a US customer can purchase, via the internet, a copy of that recording and have it shipped to them in the US, thus bypassing the US copyrights. European vendors do not monitor the copyright restrictions of the countries to which they ship product. US customs does not check. In short, the extra 25 years of the US copyrights forces US companies to take the pressing and sale of such products to Europe depriving US pressing companies from possible revenue and forcing US customers to pay extra for both the cost of pressing in Europe and the added transportation costs.

This seems like a limited (initial) crack of the Sony Play Station Portable's copy protection scheme:

The group [Paradogs] succeeded in extracting the files from the Universal Media Disc (UMD), a proprietary storage module that contains games or movies for the Sony gaming device. The ability to extract files from the discs is a first step in producing illegal copies of the software or making adjustments to the code. Because there are no UMD burners available, the crack will not cause much harm for now. But users could in theory put the software on a memory stick and run it from the storage device.

Thursday, May 05, 2005

No Spammers in France, Only Sprinklers

France is a strong and obvious force when it comes to Anglophobia, also on the web. The French National Library and President Chirac have been a driving force behind a European version of Google's digitization project, not the least out of fear of European/France literature being overshadowed by its American counterpart. Legislation has been proposed to mandate "that error messages emitted by internet sites that are not exclusively targeted on a foreign (non-French) audience are written in French": message d'erreur.

For years a list is circulating with French equivalents of Anglo-American internet terms. An official commission has been steadily translating them into French to counter the domination of the English language. In its latest wisdom this "commission générale de terminologie et de néologie" has, for example, published the following French versions of what we, and most French internet users, know as:

David Hammerton, a 20-year-old Arts-Science student, reverse-engineered iTunes' authentication measures last week, allowing non-iTunes clients to connect to Apple's servers. It was the second time he had managed to crack the authentication, however this time it took him just eight hours to break the brand-new iTunes 4.5, which had been patched against his previous research.

MPAA'S Dan Glickman: Why Can't We Just All Get Along

MPAA CEO Dan Glickman is interviewed by eWeek on the content - technology industry stand off. He plays the peace preacher ("I want to try and keep these issues as much as possible from becoming another Armageddon type of thing"), he writes the laws of human nature ("it defies the laws of human nature to think that people are going to come up with new ideas [...] just because it's a sweet and wonderful thing to do") and somewhat admits the MPAA is trying to squeeze old business into new technologies: "it's harder and harder to fit an old model into this new distribution system that we've got."

Australia Reviews Fair Use / Copyright Exceptions

Australia is trying to come to (the digital) age with its Copyright Act. Today the Attorney-General's department released a call for comments of an issues paper on the standing and possible changes of copyright exceptions: Fair Use and Copyright Exceptions [Word / PDF]. Currently Australians are not allowed to do platform shifting (e.g. ripping a CD to a MP3 player) and may only do very limited time shifting (e.g. recording television programs). Where fair use (US) and the private use exception (EU) may allow these acts, Australia does not know a specific exception for private use.

The Attorney-General said that "Many Australians believe quite reasonably they should be able to record a television program or format-shift music from their own CD to an iPod or MP3 player without infringing copyright law." [press release] The issues paper provides four possible changes to the current "fair dealing" provision and is open to others:

The issues paper gives a nice insight in Australian copyright law's fair dealing provision, while it tries to provide the basics of other countries, especially the US. It does a fair enough job at that, though its analysis can be quite shallow (for example on the EUCD, which it refers to as the Information Society Directive). It does address the DRM v. fair use issue, which is a central part of the problems the Australian government seeks to solve. I don't see an effective solution in the proposed changes. But then there is no immediate (legislative) solution for it in the US/EU either. Looks like Australia has some catching up to do, before it solves that issue for us all.

Wednesday, May 04, 2005

German Government Copyright E-Cards

Under the slogan "Kopien brauchen Originalen" (Copies need originals) the German government is promoting (the new) copyright law for half a year now. You can sent a friend the e-cards above, and also play the new copyright quiz [German] in which I was just named a Prof. DR. Jur.. Getting a law degree was never so easy.

Porn's Fear Factor as a DRM Marketing Tool

The scare of the online availability of pornography to children was the driving force behind the first significant US internet legislation. From the Communications Decency Act ('96), Children's Online Protection Act ('98) to the Children's Internet Protection Act ('00), cybersmut has been a core "argument" to regulate the internet and restrict its information flow. While protecting children against porn is a legitimate (government) interest, it may trample on the constitutional rights of adults. The US Supreme Court has said so much in last century's quintessential internet case: Reno v. ACLU.

The backlash of the overbroad legislative regulation of online porn was a drive for a technological regulation in the private sector, especially through filtering. Marketed as the ultimate tool to protect your children, many have pointed out that filtering technology may have greater implications for freedom of speech than old-fashioned laws. Still, protection against (online) porn is a huge business drive, hardly encumbered by (public) constitutional constraints.

The latest use of porn's fear factor is the promotion of DRM as the first and last guard of our children. In February I wrote about iPeer, a content distribution system free riding on "public P2P" systems that uses both technology and manual monitoring to censor pornography and prevent copyright infringement. Interestingly, the company behind iPeer (INTENT) relesead a second press release in March, dubbing the system MyPeer and give it some extra promotion as a "family friendly" solution to downloading.

Today Media Right Technology announces "a powerful new technology that addresses and mitigates one of the most pressing issues of online piracy: underage viewing of adult content." We are almost fifteen years down the road and now it are P2P networks and "widespread consumer DVD ripping" that threaten children with exposure to pornography. Playing on the conscience of parents and the adult film industry, Media Right Technology uses porn to market their average copy protection system as the saviour of our children: "MRT's SeCure Alliance DVD technology protects against the growing unrestricted access to illegal adult content online."Every time its technological threat (WWW, P2P, DVD ripping), every time its technological solution (filtering, DRM), but as always porn is a great marketing tool and the beginning and the end of it all.

USA Today story on the Chinese music market and why it might be a (good) world wide future model for consumers and musicians alike:

Music pirating is so rampant and so entrenched in China that it's unlikely to ever be eradicated. Chinese consumers have come to believe that music is worth, at most, a few cents a song, and that copying and sharing music are totally acceptable. In all probability, no company will ever be able to sell $15 CDs or 99 cents-a-song downloads in the world's most populous nation.

The International Federation of Phonographic Industry, which tracks music copyright issues worldwide, agrees. It figures 95% of music sales in China are of pirated copies. Instead of predicting that China will change as it engages with the global economy, the federation warns that China is, in fact, the leader. The federation's chairman, Jay Berman, has been quoted as saying, "The business model for the record industry worldwide is moving toward resembling what we see in China today."

As for the scope of the “making available” right, this Essay has endeavored to show that not all forms of communication of works over the Internet come within its reach. Moreover, some of the excluded (or at best ambiguously covered) communications may be economically significant. This suggests that, despite the aim of the WIPO Treaties’ enactors to assure “effective and uniform” “protection of the rights of authors,” technology may continue to outstrip the ingenuity of the drafters of multilateral instruments.

Paper: Vaidhyanathan's Celestial Jukebox

Siva Vaidhyanathan made a first draft of this short IP books review paper available for comment on his blog, but now the final version is available on SSRN: Celestial Jukebox: The Paradox of Intellectual Property. I once attended a presentation by him in Amsterdam on his Anarchist in the Library. His historical analysis of IP went beyond the American borders, which was refreshing. I can only underscribe one of his observations, and try to work to it:

Global accounts of recent trends in intellectual property constitute the greatest gap in the literature. The provincialism, the Americanism, of the field is deeply troubling. Almost all of the books on the subject are written for and about America. In a global information age (and book market) this makes no sense.

Tuesday, May 03, 2005

UN Information Society Summit Host Tunisia Jails Net Author

The UN's second World Summit on the Information Society will be held in Tunisia in November this year. The Declaration of the first summit in Geneva recognized human rights as a fundament of the information society, stating that technology should be used to protect freedom of speech. It is more than a little ironic then that it is Tunisia that has just jailed a lawyer and internet author, Mohammed Abbou, apparently for being critical of Tunisian politics and prison regime and an assault charge that was added a few days before sentencing and apparently lacks concrete evidence:

Abbou was sentenced to two years in prison for allegedly attacking a woman lawyer at a conference in 2002 and 18 months for an August 2004 commentary posted on the Tunisnews website that compared US torture in Iraq to the treatment of prisoners in Tunisian jails. He had also posted an article on the same website in February 2005 which criticised Tunisian president Zine el-Abidine Ben Ali for inviting Israeli premier Ariel Sharon to Tunis for the summit. It is this largely ironic article that is regarded as the real reason for his arrest and jailing.

The irony is now with the UN, for choosing a regime that does not fear (internet) censorship as the cradle for proclaimed, future internet freedom.

Ireland: Intellectual Property Heaven

This article cries hallelujah over Ireland as the IP heaven for commercial companies. It claims that Ireland's fiscal regime and IP laws and enforcement are. In fact, they are crowned king of the European Hill: "no country in Europe that can say it has a better statutory framework when it comes to IP." So, watch out you Irish pirates rovers!

The best part is its introduction, which claims that Ireland is the birthplace of copyright, some 15 centuries ago:

Many studies on the topic of copyright commence with the tale of St Colmcille in Ireland, who copied a gospel manuscript which belonged to St Fintan without his consent. St Fintan reported the matter to the High King of Ireland, who decided to hold an ecclesiastical court to rule on the matter; and in a judgment which would have consequences for centuries to come, he stated: "To every cow its calf, to every book its copy."

I guess I missed that tale, unlike Solomon's biblical open source proposal to do some forking...

Monday, May 02, 2005

Protest song against the Fairfax Public Libraries (Virginia, US) for "contracting with an audio book service whose file format excludes Macintosh and Linux users from accessing audio books paid for with taxpayer funds".

The new head of the Copyright Unit of the European Commission, Tilman Lüde, presented the political agenda for the coming years at the Fordham International Intellectual Property Law & Policy Conference. One of the issue he commented on was the functioning of collective rights management organisations and their interplay with the use of Digital Rights Management systems [PDF of lecture]. He noted that collective rights management organisations are not transparent enough and seems to suggest that DRM is the way for the future:

"We also need to foster legitimate online business models and aim to avoid that traditional copyright remuneration models, such as levies on blank cassettes, CDs or even computer disks become an obstacle to the take-up of legitimate digital remuneration models. (...) In the era of electronic dissemination of music, film or text by means of downloading or internet streaming copyright traditional business models, including remuneration mechanisms that have been designed for the analogue environment, may no longer function in an online environment. The Internet has spurred change in consumer behaviour and traditional business models for remunerating authors need to adapt."

The interplay between copyright remuneration through levies and DRM has been expressed in the European Copyright Directive, which aims at phasing out the levy system. Article 5(2)(b) states that when the remuneration ("fair compensation") for private copying is calculated "the application or non-application of technological measures" is taken into account. In a footnote (no. 35) of his lecture Tilman Lüde notes that

Although recital 35 of the Copyright Directive explains that this requires the national legislator to take account of payments that copyright holders have already received in some other form, Member States laws are unclear in this respect and could thus inadvertently stifle the uptake of alternative remuneration models such as DRM.

Lüde said that a change of article 5(2)(b) is amongst the policy options considered. One can only hope that the move towards DRM is not just driven by (online) business interests, but also incorporates consumer interests. At the moment consumers are confronted with the possibility of double payments (levies + paying controller DRM for making a private copy) and paying levies for content that cannot be copied due to DRM. It should be noted that using DRMs for remuneration may prove to be more privacy intrusive than a levy system, monitoring and registrating consumer behaviour. Privacy was one of the concerns in the German Personalsausweise case (1964), which propelled the introduction of the levy system in the first place (compare e.g. INDICARE Report, pp 68-69 - PDF).

- - -

ThruSolv with some additional comments on the "important" role of collective rights organisations in licensing [Dutch]Cross-posting with the INDICARE Blog

Swedish Police Physically Enforce Copyright

I found this pretty disturbing image through Karl Jonsson's Weblog. It's taken from an article in the Swedish news paper Sydsvenskan, which reported on a 24 year old girl being taken away by the police for swapping copyrighted material in a shopping mall. Since my Swedish is pretty much non-existent I asked Karl for a short explanation. He says:

This happened at a copyswap in Malmö on April 30. 20 or so people had met to publicly do physical file sharing. The girl was, apparently, giving CD-Rs away, She is suspected of copyright infringement. Yes, the people taking her away are police officers. Oh, and they also seized a guy who was passing out CDs of his own bands demos.

The Malmö incident took place a day before Piratbyrån [Swedish] organised a demonstration in favour of file-sharing in Stockholm, at which also some hand-to-hand copyswapping took place:Where a few Malmö kids get to feel the stronghold of copyright enforcement, 800 demonstrators apparently prove too much for the police.

While this hand-to-hand copyswapping may arguably be a copyright violation, and it obviously is a public taunting, it is bewildering how the Swedish police knows to generate bad publicity. The "virtual" file-sharing is at least dealt with in fairly anonymous settlements and behind court doors. Like the hand-to-hand copyswapping, this copyright crack down is all in the open for the world to see. There's a drive to polarisation from both sides in the copyright debate, blurring reasonable (legal) solutions. Changing reason for physical force is stepping beyond the poles, beyond any argument.

Paper: DRM Implications for Privacy & Freedom of Expression

This paper aims to examine some of the broader social consequences of enabling digital rights management. The authors suggest that the current, mainstream orientation of digital rights management systems could have the effect of shifting certain public powers into the invisible hands of private control. Focusing on two central features of digital rights management - their surveillance function and their ability to unbundle copyrights into discrete and custom-made products - the authors conclude that a promulgation of the current use of digital rights management has the potential to seriously undermine our fundamental public commitments to personal privacy and freedom of expression.

Video game The Fall: Last Days of Gaia pulls a prank on pirated copies:

SSE's 1.7 patch for the Fall does not actually block pirated versions of the game, but rather it removes all NPCs [Non Player Characters], making the game unplayable, as well as the PC's [player character] clothes, making him walk around in his underwear.